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West Virginia Legislature’s proposed intermediate appellate court takes page out of history

While Nevada’s debating a possible constitutional change to get an intermediate appellate court (IAC), it does so in the context of having the IAC be a court with its own judges (at least 3, but possibly more). West Virginia, on the other hand, appears to be considering something not seen in decades: an IAC made up of 2 trial judges + 1 Supreme Court justice.

First, some background.

West Virgina rewrote its entire judiciary article (Article VIII) in 1974 at a time when many states were starting to create their own IACs. The legislature at the time it adopted SJR 6 of 1974 hedged its bets: rather than creating an IAC it provided that “The judicial power of the state shall be vested solely in a supreme court of appeals and in the circuit courts, and in such intermediate appellate courts and magistrate courts as shall be hereafter established by the Legislature…” (emphasis added).

Efforts to create an IAC appear to have begun in earnest in 1999 and can be divided into two types:

The 2013 bills (HB 3130 and SB 554) are of the second type, with 2 lower court judges (active or retired Circuit Court judges) sitting with 1 Supreme Court justice.

This second practice, of having judges of lower courts sit with a member of the higher court to serve as an IAC, did occur in some states in the 1800s but was discontinued in favor of having an IAC with its own judges (most states) or an IAC made up of active members of the main trial court who were elevated by the Chief Justice (New Jersey) or Governor (New York) and had no further trial court duties.

Perhaps the closest intermediate appellate court to the one being considered in West Virginia is the one that existed from 1851-1883 in Ohio. Under Art. IV, Sec. 5 of the 1851 Ohio Constitution the intermediate appellate courts were five “District Courts” made up of 2 judges of the Court of Common Pleas sitting with 1 “judge” (term used at the time) of the Supreme Court. They were abolished in 1883 and replaced with a new system of “Circuit Courts” with their own judges (this 1883 system remains today, although a 1912 constitutional amendment gave them their modern name, the Ohio “Courts of Appeals“).